1. The second plaintiff who is the wife, and the first plaintiff who is the son, of the defendant have sued him for their maintenance. The suit has been dismissed and hence the plaintiffs have preferred this appeal. The marriage of the second plaintiff took place in the year 1946 and the first plaintiff was born in the year 1947. The defendant took the plaintiffs with him to Visakhapattanara about June 1949 when he got a job, and lived there together for about ten months and afterwards they returned. The defendant left for Vizakhapattanam by himself, and again came home in December 1950 or January 1951. That time also he returned to Vizakhapattanam alone, as according to the second plaintiff he declined to take her with him, while according to him, she was unwilling to go with him. It is the plaintiffs' case, that early in the year 1953, the second plaintiff came to know, that the defendant was in intimacy with a nurse from Thiruvalla who was employed in Vizakhapattanam. PW 6, the father of the second plaintiff, wrote to one Mathew at Vizakhapattanam, enquiring about the defendant's life there and received his reply Ext. P10 dated the 20th May, 1953, which said, that while Mathew could not vouch for the truth of the stories which were being told about the defendant, there might be some truth in them; he suggested to PW 6, that the second plaintiff might write to the defendant and depending on his reply, proceed to Vizakhapattanam with the child. Ext. P10 is proved by PW 6. Acting on this suggestion apparently, the second plaintiff addressed the defendant and received Ext. P7 dated the 5th September, 1953, which is admitted, and which, apart from making painful reading to any wife, disclosed the defendant's stern mental resolve not to allow the second plaintiff to go over to him there and in which, he repeatedly asked her to go and live with his parents at Pallam, as if that sufficed to fulfil his obligations to his wife. He made it absolutely clear to her, that she need be under no illusions that either he or someone from Pallam would take her ever to Vizakhapattanam and that as for himself, he would come only if he felt like doing so, and otherwise he did not propose to come and warned her that she need not attempt at any settlement or compromise with his people at Pallam, and that in case of her unwillingness to go to Pallam she may act as she and her relations thought fit. He concluded, that if something was needed for the first plaintiff, he was prepared to send it on hearing from her.
2. The defendant happened to come home on leave in 1954 January, and it is stated by PW 1, that the second plaintiff accompanied him to Vizakhapattanam on his return. Very soon PW 6 received a telegram Ext. P1 dated the 27th February, 1954, purporting to be from the second plaintiff, requesting him to start for Vizakhapattanam immediately and take her home, as she did not want to stay any longer with the defendant. The second plaintiff has sworn as PW 1, that she had never sent Ext. P1. PW 6 had his own suspicions about the genuineness of Ext. P1, and so he caused Chacko living at Kumarakam in the neighbourhood, to send a telegram to Mathew, to enquire and reply about Ext. P1. Chacko was said to have sent a telegram, copy of which is Ext. P12 and PW 6 received Ext. P2 reply telegram dated the 5th March, 1954 from Mathew, intimating him, that he had a discussion with the defendant, that the telegram Ext. P1 was sent by the defendant and advising PW 6, that he had better take the second plaintiff home. After a few days, PW 6 received another telegram Ext. P13 dated the 24th March, 1954, purporting to be from Mathew, and informing him that the second plaintiff had been to Mathew for being taken home, but that he could not undertake the responsibility. PW 6 doubted the genuineness of this telegram too and made a further reference to Mathew when he received Ext. P3 telegram dated the 30th March, 1954, from Mathew, which said that Ext. P13 also was sent by the defendant himself and which called upon PW 6 to press the defendant's father to go over to Vizakhapattanam. These telegrams are proved by PW 6.
3. In the meantime soon after Ext. P2 was received, Mathew's brother PW 5, the Vice President of his Panchayat, and the second plaintiff's brother PW 7 left for Vizakhapattanam and were there on the 9th, 10th and 11th of March. PW 5 knew then, that all was not well with the second plaintiff and the defendant in their relations, that the defendant was an absentee from home most of the time, and did not make adequate provisions for her sustenance and that there was complaint of infliction of physical violence on her. PW 7 said in addition, that the defendant was spending his time with a nurse, that he met him at his Office and was asked to take his sister with him. The second plaintiff would not leave Vizakhapattam, for fear that the nurse would live with the defendant openly. Whether her apprehensions were well founded or not, her conduct was natural and furnishes a clue for holding, that she was not responsible for sending Ext. P1 telegram or for causing Ext. P13 to be sent; nor would she have declined, as appears to be the defendant's case, to accompany the defendant, when on the previous occasion he returned to Vizakhapattanam after leave. There is no good reason for not accepting this evidence of PW 5 and PW 7. The former is a disinterested witness. On his return PW 7 gave the defendant's father an account of his son's life at Vizakhapattanam and he told PW 7 that he would himself go and make enquiries.
4. On the 3rd April, 1954, Mathew sent two telegrams to PW 3 the earlier one Ext. P4, intimating that the second plaintiff has had an abortion and has been admitted to the hospital, and Ext. P5 the later one, that she was improving and was out of danger. But on the 4th itself, the defendant's father was in Vizakhapattanam. On the 15th April, 1954, Mathew addressed Ext. P9 letter to PW 5 intimating him that his intervention on behalf of the second plaintiff was not to the defendant's liking and that therefore he did not wish to interfere any more and that the defendant even pointed a dagger at him on one occasion. PW 5 has proved this letter, which was addressed to him by his brother. On the 1st May, 1954, the defendant's father left Vizakhapattanam with the second plaintiff after she had recovered from her illness and the defendant sent a telegram Ext. P6 on that day to PW 6, to await her arrival at Kottayam on Monday. On arrival at Kottayam, the second plaintiff lived in the defendant's father's house at Pallam till the 22nd February, 1955. According to the plaintiffs, the defendant came on leave to Pallam on the 20th February, 1955; there was then an incident at Pallam in the course of which she received a beating. News of this reached the ears of PW 6, who, in the company of PW 2 and PW 7, went over to Pallam and discussed the matter with the defendant's father, the defendant being away at the time, when he agreed to send her with PW 6. The second plaintiff came back to her parental home at Kumarakam. This episode has been proved by PWs 2, 6 and 7. PW 2 is a dentist by profession, and is a respectable witness and though distantly related to the second plaintiff's mother is disinterested and can be believed. While returning he accompanied the party only as far as Kottayam. There is no reason to reject the evidence of PWs 6 and 7 also on this point. According to the plaintiffs, when the second plaintiff came away from Pallam on the 22nd, the defendant was in hiding as it were in a neighbouring house, and according to the defendant, he had gone to Trivandrum and had returned only after her departure. Apparently he did nothing after she left Pallam and himself left for Vizakhapattanam shortly. All this suggests, that the defendant's father would not have agreed to send the second plaintiff home had he not known that the defendant would have no objection to such a course. On the 28th February, 1955, there was a mediation at which PW 3 the plaintiff's parish priest, PW 4, PW 6, PW 7 and others were present. The testimony of PW 3 who is a respectable witness, may be acted upon. He said, that on a complaint that the second plaintiff was beaten by the defendant after he came on leave and that she was not being allowed to live at Pallam house, they all proceeded there and had an interview with the defendant's father; at that interview, according to the witness, the defendant's father told them, that he could not allow her to live there because it was the duty of the defendant to maintain her, that he had no voice, as the defendant was not under his control and as he is a wholly bad man XnI pw ]ngbmWv and that he was willing to return her Stridhanam amount. He also said, that on that day the second plaintiff showed him some marks of injury on the back of her neck and below her knee. They returned disappointed. PW 4 also testified to this, but his evidence alone is not of much intrinsic value, because of a few leading questions put to him, and of his relationship with PW 6. PW 6 also testified, that at that meeting the defendant's father told them that the defendant was hundred per cent bad. vqdpiXamw ]ngbmWv that the defendant would not take the second plaintiff with him nor could she be allowed to stay at Pallam, and that, he for his part was willing to return, her Stridhanam. PW 7 also testified in similar terms. Though PWs 6 and 7 are near relations of the second plaintiff, their evidence is amply supported by PW 3. The defendant's brother Dw 4 also admitted the mediation by PW 3 and others, but explained, that it related to the claim for Stridhanam and maintenance, and said that his father asked them to send the second plaintiff to the defendant. This looks improbable. According to the plaintiffs, the first plaintiff who was at Pallam also came away, and according to the defendant, he was taken away by force in March 1955 on his way to school. The present suit was filed in November, 1956.
5. The plaintiffs took several steps for the examination of the defendant's father, who had spent nearly one month at Vizakhapattanam and could therefore speak to his son's life there, and to his relations with the second plaintiff. He could also speak to the circumstances under which she was taken away from Pallam on the 22nd February. I agree with the Judge in thinking that he was avoiding the witness box. DW 1, the defendant, deposed that the period during which he and his wife were together at Vizakhapattanam from 1949 June, was a period when rationing was in force and that when he returned to Vizakhapattanam after coming home on leave, the second plaintiff excused herself from accompanying him, saying that her parents did not allow her to go with him, his pay being inadequate. All the same he said, that he had been asking the second plaintiff time and again to go over to Vizakhapattanam with DW 4, with his sisters, with one Kunjan and others, but she did not go over to him and on one occasion he even made a telegraphic money order remittance for Rs. 50/- for the purpose. The second plaintiff has denied this remittance, and that she had ever been asked to go over to Vizakhapattanam. The defendant also said that when he came on leave in the year 1951, he had also taken a pass for his wife and child for their return by plane, but admitted that records are available to prove this, and these have not been proved. The only evidence as to any remittance having been made is Ext. D1, a postal receipt for Rs. 50/-. Ext. D2 is a postal receipt for a parcel, also addressed to the second plaintiff. They are both dated the 20th October, 1252; the relative acknowledgments have not been produced, nor were Exts. D1 and D2 put to the second plaintiff, whose examination was completed only after these were filed. Incidentally he admitted, that a nurse had been attending on him when he was in hospital after undergoing an operation, and that she had been to him on her way to Nagpur when his wife was also with him at Vizakhapattanam. DW 4 also gave evidence on similar lines. He instructed the defendant's lawyer for the conduct of this suit. The fact that the second plaintiff's life at Pallam with her husband's relations had not been happy, may be inferred from Ext. D5 a letter which she sent so early as the 3rd July, 1951, to her father, which has been produced and proved by DW 1. The later estrangement between her and her husband, could only have embittered the relations of the defendant's parents and of herself.
6. I have examined above the evidence adduced by both parties, in the background of the history of their marital life and in the light of the broad circumstances and probabilities of the case. To adopt the words of PW 1, after the defendant took up employment in Vizakhapattanam, they had lived together only for about ten months from June 1949 and for about five months from January, 1954; and for about ten months after her return in May 1954 she was with her husband's parents. PW 1 said no doubt that she had destroyed the letters the defendant had sent her, but she swore that he never wanted her to go over to him; this is quite in keeping with the tenor of Ext. P7. The documentary evidence for the defendant as to any remittance having been made is Ext. D1, besides this, there is only the story of a telegraphic money order remittance of Rs. 50/-. After she joined the defendant at Vizakhapattanam in January, 1954, his conduct in sending Ext. P1, and also Ext. P13, discloses not only that he had taken her to Vizakhapattanam much against his will, but also that having taken her, he wanted to get rid of her as soon as possible. I entertain no doubt, that the second plaintiff did not send Ext. P1 and I am prepared to believe her fully when she said so. The circumstances also point to the conclusion that the defendant was himself responsible for Ext. P1, not to mention Ext. P13 also. Ext. P1 by itself affords a valuable insight into the defendant's mental attitude. Mathew would have been a very useful witness for the plaintiffs, but for some reason or other he was not examined, and this is certainly a defect in the plaintiffs' case. Had he been examined, much light would have been thrown on the alleged affair with the nurse and on the relations between the defendant and his wife while they were together in Visakhapattanam in the year 1954. I am not inclined to doubt the genuineness of Exs. P 2 and P 3 when they were received in reply to enquiries made of Mathew, It is true that the defendant donated his blood for transfusion when the second plaintiff's life was in danger ; it would be quite uncharitable even to imagine, that he desired the second plaintiff to die. After all the first plaintiff was quite a boy who had to be brought up and taken care of. As for the offer in the written statement and in the defendant's deposition to take the second plaintiff with him, after all these years, I cannot regard it as genuine or even bona fide. Much stress was laid on the fact stated by PW 6, that during the pendency of the suit, the defendant had been to his house once or twice and expressed his willingness to take her with him; this is of no great significance, except that perhaps he was anxious to avert a decree being passed against him in the suit. I have again to emphasize, that the defendant's father successfully avoided giving evidence as witness.
7. On the allegations in the plaint, and in the nature of the evidence, I cannot hold that the second plaintiff was subjected to violence at the hands of the defendant while she was at Visakhapattanam in the year 1954. PW 1 spoke to it of course as witness, and the mark of an injury on the forehead was shown to PW 5 when he visited her with PW 7. But PW 7 did not speak to any such theory. There is also no direct evidence as to the infliction of violence at Pallam house when the defendant came there in February, 1955. The teacher who gave information to PW 6 was not examined. Neither PW 6 nor PW 2 said, that they noticed the marks of injuries on the 22nd and they appear to have noticed them only on the next day after she had gone to her father's house. PW 3 saw the marks only on the 28th. Although I am positive, that there was some incident at Pallam house on the defendant's arrival, which was responsible for PW 3, PW 6 and PW 7 going over there on the 22nd and taking the second plaintiff away, I am unable to hold on the evidence, that the beating has been proved beyond doubt. Pw. 1 has also a case, that the abortion itself was caused by the defendant administering some medicine to her one day, but this stands unproved and as a mere possibility or a theory. As for the defendant's affair with the nurse in Visakhapattanam, the evidence of PW 1 and the circumstances sworn to by PW 5, and PW 7 have cast some suspicion on the defendant. PW 1 has exaggerated matters and has in one part of her evidence referred to two nurses and not one. Clinching evidence could have been made available by examining Mathew, who knew a good deal and whose respectability was admitted by the defendant, but this was not to be, and the plaintiffs have to pay dearly for this omission. The suspicion has gathered strength from the proved statements made by the defendant's father in the presence of PW 3 and others on the 28th February, that the defendant is XnI pw or qdpiXamw ]ngbmWv The long periods of separation between the 1st defendant and his wife and his extreme reluctance to have her with him as disclosed by Ext. P7 and by his later conduct discussed above, no doubt give point to the case of the plaintiffs. But in the absence of Mathew's evidence, suspicion however strong, is not sufficient to enter a finding against the defendant on an allegation of this kind.
8. The time has now come to make a final assessment. The facts proved are, that ever since 1950, the defendant did 0ot like or even want the second plaintiff to live with him, that when she wrote to the defendant, he set his face sternly against her going over to him by his letter Ext. P7, that it was against his will and perhaps, as the indication is, after some persuasion that he took her with him in January 1954, that soon after, he contrived various means in his power to send her away, and the opportunity came when she had just recovered from her illness and the defendant's father was returning home, that during their short stay together in the year 1954, all was not well for the second plaintiff, and that her stay till February, 1955, in Pallam as disclosed by Ext. D5 and strengthened by subsequent history was not also happy. The defendant's father apparently considered it a riddance when PW 6 took her away on the 22nd February. There is no acceptable evidence that during these long years the defendant made any remittance to the plaintiffs, except perhaps the remittance evidenced by Ext. D1 which is a postal receipt only, made in the year 1952. The facts as found above, furnish a close parallel to the case reported in Parsathi Ammal Parvathi Ammal v. Bhagavathy Ammal Devi Ammal (1949 KLT 152) where Krishna Pillai, C. J., observed thus :
"The relationship between the couple was probably cordial and except that the plaintiff did not choose to go in pursuit of her husband there is no blame that can be attributed to her. No doubt she was taken care of in her own house by her father, but that does not exonerate the husband from his liability towards his wife. It is clear law that the husband's liability to maintain the wife is a matter of personal obligation arising from status and independent of the possession by the husband of any property, ancestral or self acquired. Ordinarily the wife's duty to her husband is to submit herself obediently to his authority and to remain under his roof and protection but where the husband is unmindful of his duties and neglects to take the wife and maintain her in his own house the wife must be held to be compelled to live apart from him. In that case the wife could not be expected to impose herself on her husband's company or set out in pursuit of the husband or stay in his house so as to constitute herself a nuisance."
9. The foundation for the case of desertion has been laid in the plaint and the plea has been amplified in the replication. The issue raised was wide enough to cover the point, but the Judge below focused his attention on the allegations in the plaint of physical violence, and of the defendant's misconduct. The case of desertion was not before his mind in a pointed form. I consider that this case is made out in the pleadings and on the evidence. On the facts as found, I hold, as in the case cited, that the defendant has been guilty of desertion of the second plaintiff, that is to say, of abandoning her without her consent or against her wish. She is therefore entitled to separate maintenance, at the rate of Rs. 25/- per mensem from the date of suit as found by the Judge. Interest shall run on the amount of arrears accrued up to date, only from this date at 5% per annum. There is no legal right to ask for maintenance for the first plaintiff from his father. This has been held in Chacko Daniel v Daniel Joshuva (1952 KLT 595) and nothing was urged before me against this position. Therefore I do not decree maintenance for the first plaintiff.
10. The result is, that the decree of the Subordinate Judge dismissing the suit is hereby set aside and the second plaintiff is given a decree for maintenance in the above terms. In view of the findings arrived at by me, I allow the second plaintiff only half the costs of the suit in the lower court and half the costs of this appeal in this court, to be realised from the defendant. The suit is dismissed so far as the first plaintiff is concerned.